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Missing evidence in ‘ninja’ murder case

KCSO unable to produce bullets, casings recovered from murder scene

Posted: November 18, 2010 5:09 p.m.
Updated: November 19, 2010 5:00 a.m.

A little after 9 a.m. Wednesday morning, S.C. Law Enforcement Division (SLED) ballistics expert James Green was called to testify in the trial of two young men accused of killing Derick Lee of Lugoff in August 2009.

Green, who was the first witness called on the trial’s third day, was asked to step down following a brief sidebar between defense attorneys, the 5th Circuit Solicitor’s Office and Circuit Court Judge G. Thomas Cooper. The jury was excused moments later.

The reason? The bullets and shell casings Green was to testify about weren’t in the courtroom. In fact, no one knew where they were.

“We have pictures of the bullets … and of the shell casings, side by side, but the actual bullets and casings aren’t in the evidence room,” admitted 5th Circuit Assistant Solicitor Ron Moak.

Moak also said the court had Green’s report, which he claimed would conclude the two bullets and casings were not the same -- that one was a 9mm while the other could be either a 9mm or .38 caliber. He explained that after the bullets and casings were recovered from Lee’s Cricket Hill Drive home, they were went to SLED for analysis and then returned to the Kershaw County Sheriff’s Office (KCSO) from where they have since disappeared.

Amy Zmroczek, co-counsel representing defendant Joshua Stapleton, said Green’s testimony should be inadmissible.

“The testimony is highly prejudicial anyway,” said Zmroczek, “but without the bullets, it’s extremely prejudicial.”

Zmroczek also said there were no guns in evidence.

Wednesday afternoon, Moak attempted to call Green to the stand a second time. Cooper excused the jury again, but allowed Moak to offer Green’s testimony into the record.

After Moak established Green’s credentials, Zmroczek explained that she had contacted the KCSO on 14 separate occasions to examine the bullets.

“Every time I tried to speak to the evidence custodian I had to leave a message,” said Zmroczek.

The most recent time Zmroczek said the question of the bullets came up is when prosecutors and defense attorneys met with SLED Nov. 12 to go over the evidence. During that meeting, Zmroczek said, she asked Green for copies of some pictures of the bullets and casings.

“I was told I couldn’t have them. He showed them to me, but denied I could take them,” said Zmroczek.

Green explained to Cooper that he had to “force” the side-by-side comparison picture of the two bullets in order to meet Zmroczek’s request. Zmroczek said Green provided her with the pictures Wednesday morning.

Rising from his chair, Public Defender Neil Riley, who is representing co-defendant Christopher Watson, said, “Why don’t we have them?”

“I don’t know,” replied Cooper. “It’s a surprise a minute.”

During the morning session, Riley had said Green would be testifying to “phantom objects.”

“It would be giving the state a free pass,” he argued.

Cooper said the unavailability of the bullets and casings and the late production of ballistics-related photographs created an “unfair prejudice” to the defense since it would not be able to examine or object to the evidence.

“This is not a trial by surprise,” said Cooper. “Anybody can write a report, but if you can’t share the basis of the report … what if (the defense) had their own expert? I don’t think there was any bad faith here, but … if the underlying evidence is not shared, you can’t just say ‘Here, just accept this report.’”

And with that, Cooper ruled to exclude any testimony relating to ballistics, leaving prosecutors without a key part of their case.

Booby traps

One of the things investigators try to do is learn about the victim, said KCSO Investigator Jamey Jones who was called to the stand after Green’s first dismissal Wednesday morning.

They learned something almost immediately after being called to the scene: that Derick Lee may have been a very paranoid man.

Jones testified he was called to Cricket Hill Drive on the morning of Aug. 12, 2009, shortly after a deputy met with one of Lee’s friends outside the mobile home. The friend said he had been trying to reach Lee for several days and, after failing to do so, went to the home. When he got there, he told deputies, he could see a large number of flies in the window and noticed a “bad smell.”

Deputies noticed it, too, and called investigators.

“When we got there, we were told the back door was unlocked but that the front door was locked and dead-bolted,” said Jones. “So we began to enter through the back door and the first thing we noticed was that it was booby trapped.”

Jones said some kind of long barrel had been placed up near the ceiling pointing down toward the door. It was rigged, he said, in such a way that a shotgun shell could be placed inside it. A fishing line led from a primer down the wall to the door.

“If the door was opened, it would ‘fire’ at the open door,” said Jones.

He said he and another deputy went inside with “extreme caution,” but did not find a shell in the barrel. However, they did find a similar device set up at the front door. They began taking pictures, including one they said showed the victim’s legs laying on the floor from the kitchen area.

“We knew who was supposed to live there, but the body was so badly decomposed, we couldn’t ID him,” Jones said.

Pathologists later determined Lee had died on the night of Aug. 9, four days earlier.

Although more pictures were taken and Lee’s body removed, no evidence was collected until the next day, Aug. 13, when a search warrant was obtained. Jones testified that was done as a precautionary measure since they weren’t sure of Lee’s identity on Aug. 12.

Jones said he and fellow investigator George Marthers realized something else about the scene: it wasn’t in disarray. They began to theorize, he said, that Lee likely knew his killer or killers -- that he had let them in.

Jones testified that he and Marthers had to work to recover the bullets at the scene. One, he said, had passed through the kitchen floor.

“We had to go under the trailer. It had gone through the insulation. We found the bullet on a metal beam,” said Jones.

They also found the freezer door open and noticed a blood spatter inside the freezer. They found a bullet hole in the freezer door and noticed a lump, rather than an exit hole, on the outer side of the door. The second bullet was found in the door.

Jones also testified that one shell casing was found on the kitchen floor, the other by the trailer’s front door.

“To my knowledge, they’re in evidence, but I do not know where they are,” said Jones. “Our evidence custodian is having trouble finding them.”

Finding suspects

While they were processing the scene, Jones said, someone drove by the home. Slowly.

“They looked at us very hard,” he said.

After the vehicle turned around on Cricket Hill’s cul-de-sac, a deputy was sent to talk to the man in the car. It was Carl Mendez.

“We sent him to talk to Lt. Phil Crawford because he said he was a friend of Mr. Lee’s,” said Jones, who said Crawford later told him Mendez was “good” and “didn’t know anything.”

They would talk to Mendez again. In the meantime, they continued to get to “know” Derick Lee.

Jones said they learned Lee was a skilled ninjitsu martial arts master -- he had throwing stars and nunchuks and knew hand-to-hand combat.

On Friday, Aug. 14, someone told Jones and Marthers to look into Stapleton and Watson. The tip indicated they had been “hanging around” Lee and then vanished, perhaps to Lancaster where Stapleton lived with his parents. They located the two young men there the next day, Saturday, Aug. 15. They spoke to Watson, 21, and Stapleton, 24, separately in Marther’s SUV.

“We spoke to Mr. Watson first and he was asking us a lot of questions about the evidence and about what we knew,” said Jones. “He claimed he knew who the killer was.”

According to Jones, Watson described Lee as an “assassination ninja,” that Lee would go on missions to New York City. Jones said he and Marthers looked into that. It wasn’t true. Lee’s only connections to New York were that his girlfriend lived there and he had trained at a Staten Island ninjitsu dojo.

In a statement written at that point, Jones testified, Watson claimed he had spoken to Lee at his home the Saturday before and only learned Thursday, Aug. 13, that Lee was dead.

Jones also read out a statement he had written on Stapleton’s behalf that Saturday morning. Stapleton said he had called Lee on Aug. 6 to invite him to his birthday party on Aug. 10. He claimed Lee called him back on Aug. 10 explaining he might be late because of his work in Florence.

“We had already looked at Mr. Lee’s cell phone records,” said Jones. “We knew his last call was to his girlfriend in New York around 4 a.m. Aug. 9. We also knew he hadn’t been to work all week.”

Lee worked not as an “assassination ninja,” said Jones, but as part of a S.C. Department of Transportation work crew, sticking down reflectors as highway stripes are painted.

“We didn’t believe either statement. We didn’t believe them at all,” said Jones.

So,  he said, he and Marthers started over again. They went back to Railgate Loop in Lugoff, where Stapleton and Watson and others they had talked to live or hang out.

They found Mendez, the young man who had gone slowly by Derick Lee’s home after his body was discovered.

“When we pulled up, he about fell down he was so nervous. We got out and asked him ‘What’s wrong’ and he said, ‘I’ve never been through anything like this,’” said Jones.

Mendez followed the two investigators to KCSO headquarters and gave his account of what happened Sunday, Aug. 9. According to Jones, Mendez said he was called by Watson and Stapleton to drive them from Lancaster to Lugoff. As they approached Cricket Hill Drive, Mendez told Jones, they said they were going to kill Lee.

“Carl Mendez admitted to taking Josh and Christopher to Derick’s, dropping them off and coming back after a specified time,” said Jones. “When they came out with the guns, he asked them ‘Who killed Derick?’ Josh said, ‘I did’ and Chris said, ‘Yeah, that’s what we did.’”

Even then, Jones said, he and Marthers didn’t feel they had the whole story. They went to a judge, who ruled they had probable cause, issuing warrants for Stapleton and Watson’s arrests on murder charges. Only hours after speaking to Mendez Saturday, Aug. 15, Stapleton and Watson were arrested, taken to the Kershaw County Detention Center and then, separately, brought to KCSO headquarters to be interrogated.

‘Who killed Derick Lee?’

Watson and Stapleton’s interrogations were recorded on video. Over the objections of defense counsel, those videos were allowed into evidence but in an altered form. Although the entire video image was allowed into evidence, the audio had to be separated from the recording and “edited” so that each defendant wasn’t “testifying” against the other.

In the first video, of Watson, whenever he, Jones or Marthers used Stapleton’s name or said something about him, the audio would be silenced. As Riley would later point out, however, the jury knew who was being referred to.

When Zmroczek’s co-counsel, John Delgado, was cross-examining Jones, he made a statement that essentially revealed that to the jury.

At the beginning of both recordings, Marthers goes over the defendants’ Miranda rights, which they are both seen waiving, agreeing to speak to him and Jones. In both cases, as soon as those rights have been waived, Marthers and Jones make it very clear that they “know” what happened on Aug. 9, 2009, and that Watson and Stapleton must tell the truth in order to help themselves.

Jones testified that Watson was interrogated first, then Stapleton.

As soon as either Watson or Stapleton begin speaking, Jones and Marthers call them liars. They are heard using phrases such as “we’ve got you” and “we’ve already got enough to put you in prison.” Marthers bangs the table in the interrogation room on several occasions, mimicking gunshots.

At first, Watson denies being at Lee’s home on Aug. 9. He then talks about being there on a particular Saturday, but can’t remember exactly. He claims to have gotten permission from Lee to pick up a lawnmower he’d left there for Lee to fix.

Jones becomes exasperated.

“I’m this close to walking out of this room,” he tells Watson. “I can prove my case and put you in prison for the rest of your life. You’re a liar and your friend’s a liar. We know what happened.”

Watson then admits he had been at Lee’s home on Aug. 9 but that he stayed outside where he heard the gunshots. He begins to cry and says he’s scared of Stapleton. Jones assures him they will continue to be separated.

“Josh went into the house. I heard an argument and then three shots. Then Josh came running out,” Watson says.

After more than 30 minutes of interrogation, Watson is ready to write a confession for Jones and Marthers. The two investigators praise him, telling him he’s “done good.” The recording ends with them leaving him alone so he can write his statement.

Jones read the statement to the jury. In it, Watson again claims it was only Stapleton who went inside. That he heard an argument, then gunshots and then saw Stapleton run out with four gun cases which he threw in the back of Mendez’s truck.

Stapleton’s interrogation goes differently and more than an hour long.

He begins by talking about motorcycles; Marthers immediately cuts him off, accusing him of lying. Like Watson, Stapleton claims he was not at Lee’s house at all on Aug. 9, that he has no idea who killed Lee.

Jones and Marthers stop him again and tell him he’s being given “one more chance.” Stapleton continues to insist he had nothing to do with Lee’s death.

At that point, Jones and Marthers get up and leave. Off camera, as they exit, one of them is heard saying “murderer … murderer.”

Stapleton sits, his manacled hands in his lap, for about 90 seconds before Jones returns to the room claiming they’re packing up and are almost ready to leave the sheriff’s office.

“If you want to talk, you have to tell us what happened,” says Jones. “Who killed Derick Lee?”

Stapleton says he’s not sure, but appears to admit he was there, but didn’t go inside. Marthers returns and for the next 45 minutes, the two investigators -- sometimes yelling, sometimes more calmly -- have Stapleton go through the story a total of five times.

Stapleton claims he called Lee Aug. 10; Marthers claims he couldn’t have although he doesn’t say that’s because Lee was already dead.

Stapleton finally admits he was in the mobile home, but claims he didn’t shoot Lee. He says he was sitting on Lee’s couch, watching TV when he suddenly heard a gunshot and then Watson telling him they’ve “got to go.”

Stapleton says he wasn’t sure what Lee was doing in the kitchen, that he “heard a couple of shots go off” but wasn’t sure how many or “who shot who.” He claims he didn’t call 911 because he was terrified, that he was scared of Watson.

Stapleton says Lee might have been cleaning his gun, that Lee and Watson might have “exchanged words.” He says he ran outside after the first gunshot and then heard another outside. He also says he has no idea what happened to the missing guns.

“If someone uses one of those guns, I’m going to get you,” Jones tells Stapleton, “and you’ll never get out of jail.”

Stapleton indicates Watson might know what happened to them and that he would probably finger him in Lee’s death. Jones is having none of it.

“What did you do with the guns, Josh?”

“I didn’t,” says Stapleton.

“Yes, you did,” says Jones. “Yes, you did. Yes, you did.”

Marthers asks Stapleton to imagine what it would be like for his mother to get a call that he was dead, like the call Lee’s mother must have gotten.

Each time Marthers and Jones try to get him to tell what they believe is the truth of what happened on Sunday, Aug. 9, 2009, Stapleton insists he didn’t pull the trigger.

“Maybe not,” says Jones, “but you’ve lied. You haven’t just lied, you’ve expanded it.”

Marthers suggests Stapleton has no feelings regarding Lee’s death.

“You don’t care about this man being dead,” says Marthers. “You haven’t shed one tear. You’re just trying to cover your own ass. Your ass isn’t covered.”

Two long deletions of audio follow Marthers’ statement.

By the end of the recording, the two investigators and Stapleton are going back and forth over exactly what vehicle was used to leave the scene. At that point, Jones and Marthers have had enough. They leave Stapleton in the interrogation room without a confession, without a written statement from their suspect.

After Moak rested the state’s case, Delgado and Riley both asked for directed verdicts. Delgado did so claiming the state’s evidence was too confusing and contradictory; Riley claiming the state had not proven malice aforethought.

Cooper denied both motions.

Defense attacks

“Tell the truth!” Delgado yelled at Jones when he began his cross-examination.

Delgado was referring to the missing ballistic evidence.

“You just don’t want to admit you lost them, do you?” he asked Jones.

“I’m not the evidence custodian,” Jones replied.

It was the first of several attacks the defense attempted against the state’s case. Delgado also challenged Jones and Marthers’ interrogation and investigation techniques. He accused Jones of making suspects feel cut off from the outside world and confronting them with “knowledge” when investigators “really didn’t know anything.”

“Yes, we did,” insisted Jones. “We had already spoken with Carl Mendez.”

Riley had a little more luck, getting Jones to admit they had no physical evidence placing Watson at the scene. He also got Jones to admit that where he had claimed in the video recording of Stapleton’s interrogation that “numerous people” had heard Stapleton make a claim that Lee had “pulled the trigger on me,” only one person had actually told investigators that.

But much of the defense’s attacks and case dealt with phone records.

Riley had Jones check phone records purportedly tied to a cell phone used by at least Mendez, if not Watson. The cross-examination determines that all the incoming calls originated from Elgin.

Later, as Delgado presented his defense of Stapleton, he called Stapleton’s sister, who lives in Virginia, to the stand. She testified that she was on the phone with her mother and brother several times on Aug. 9. She said she could tell they were home because their two dogs were barking in the background during each call. Stapleton’s sister claimed she spoke to her brother four or five times from relatively early in the day until late enough to wish him a happy birthday when it became Aug. 10.

Another Delgado witness, Eric Davidson, said Carl Mendez lived at his home on Railgate Loop and often used his cell phone with permission. Davidson also said he met Watson through Mendez and Stapleton through Watson. He said he believes Watson stayed the night either Aug. 8 or Aug. 9. He said Watson and Mendez told him they were going to the Kershaw County Library, probably in Camden, on Aug. 9.

Davidson also testified that Watson would often use his cell phone as well, a fact, Delgado said, proved his client, Stapleton, was not the only person who could have used that phone.

Delgado was expected to call one or two more witnesses Thursday, followed by closing arguments from both sides with the jury possibly being handed the case Thursday afternoon. The C-I will have a complete report Monday.

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